The Supreme Court is guilty of a broad “failure to communicate” to the public it serves, constitutional scholar and law dean Erwin Chemerinsky said on Friday.
And this failure extends beyond the Court’s stubborn resistance to allowing camera coverage of its oral arguments. At almost every point of its decision-making process, according to Chemerinsky, the high court should be doing more to inform the public about what it does.
Chemerinsky, founding dean of the University of California, Irvine School of Law, was the keynote speaker at a symposium on the Court, the press and the public at Brigham Young University’s J. Reuben Clark Law School. Scholars and journalists spoke on different aspects of the interaction – or lack thereof -- between the Supreme Court and the public.
The conference coincided with renewed calls for the Court to allow cameras in, this time for the upcoming oral argument on the constitutionality of the Affordable Care Act. Several requests for broadcast access are pending before the justices.
“People should be able to watch their government in action, and [the Supreme Court] is a crucial institution of government,” said Chemerinsky, who added that he thinks a First Amendment argument in favor of broadcast access could be made.
Chemerinsky said many members of the public think that the fate of the health care reform law will turn on issues of individual liberty, rather than on the Constitution’s commerce clause. Airing the oral arguments in late March would clear up that misunderstanding, Chemerinsky said, and would be a “tremendous civic education.”
The public would see nine “exceptionally intelligent” justices working hard to get the right answer, he said, asserting that televised oral argument would enhance, not diminish, the Court’s stature with the public. It might even encourage “better behavior,” Chemerinsky said. “Justice Thomas might ask some questions.”
Chemerinsky did not focus only on the long-running debate over cameras at oral argument, highlighting other deficiencies in its procedures. The Court has pointed with pride to advances in this area, including its web site, where decisions and oral argument transcripts are posted quickly. But Chemerinsky said much more is needed for the Court to explain itself better to litigants and to the public, in the interest of enhancing the Court’s legitimacy and public understanding.
For example, he said the Court owes litigants as well as the public some explanation why it has denied review in pending petitions. The “vast majority” of petitioners, even some that pose a circuit conflict, are denied review without learning why. That, he said, is an “extremely important failure to communicate.”
The Court could also be doing more to inform the public when it releases opinions, Chemerinsky said. It should be telling in advance which decisions it will be releasing – as courts in California and Canada do – to assist the press and commentators in getting ready to write about its decisions. The justices should also spread out the release of opinions “to allow the press to accurately report” on them, he added.
And to increase understanding of sometimes “dense and hard to follow” decisions and syllabi, Chemerinsky said the Court should hire a “clear writer” who would boil each decision down to a single paragraph that would be released along with the ruling.
Justices should also strive to make their opinions more concise, he said. There is a “perfect inverse correlation,” Chemerinsky said, between the decrease in the number of cases the Court decides with opinions, and the increase in the length of those opinions.
Other presenters at the conference sought to drew correlations between the justices’ personal experiences and their views on the media.
Conference host and Brigham Young professor RonNell Andersen Jones, formerly a clerk to Justice Sandra Day O’Connor, explored the seeming inconsistency between the Court’s “overwhelmingly press-protective” decisions and its “access-stingy” policies relating to its own work. One explanation, she said, is that the Court can exercise “a colossal amount of control over their operations.”
Boston College Law School professor Mary-Rose Papandrea spoke about the justices’ “quite cautious” approach to new technology in their decisions and in their personal lives. She said “my beloved boss” Justice David Souter, for whom she clerked, recently said – perhaps jokingly – that he had tried to use an iPad, but hid it in a closet because he could not figure out how to turn it off.
By Tony Mauro